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Can an Employer Terminate an Employee Charged But Not Yet Convicted of a Criminal Offence?

Whitten and Lublin | Jan 23, 2017

An employer may be concerned about damaging their reputation by continuing to employ an individual that has been charged with a criminal offence. This may especially be the case if the employer is known to be involved with the community in which it operates its business. In trying to establish whether there is just cause for termination, a court looks at the following:

  • The amount of responsibility the employee has in relation to his/her duties
  • The degree to which the company’s reputation in the community may be harmed
  • Whether the accusation involved the use of company equipment

To illustrate, the case of Kelly v Linamar (Ontario Supreme Court of Justice) speaks to the above listed points quite well.

Kelly supervised 10-12 employees, managed deliveries and was in contact with customers on a regular basis. Linamar is located in Guelph, Ont., a small town of about 100 000 residents. Linamar had a great reputation in Guelph, especially with its contributions to children for educational donations, sponsoring many youth sports teams and assisting local schools in educational initiatives. Kelly was charged with possession of child pornography at the time he was employed by Linamar and the local media identified Kelly as an employee of Linamar.

Linamar terminated Kelly before he was convicted of this criminal offense and the court found the termination was justified. Considering the points above, Linamar was justified in terminating Kelly because:

The amount of responsibility the employee has in relation to duties:

Kelly was a supervisor and was in constant contact with customers. The fact that the community was aware of the charges against Kelly due to the local press made this a concern for Linamar and its brand.

The degree to which the company’s reputation in the community may be harmed:

Given that the charges dealt with allegations concerning children, this directly conflicted with the image Linamar had in the community. Linamar made efforts to positively impact the children of the Guelph community. Given the press releases and Kelly’s interaction with customers within the Guelph community, Kelly’s continued employment definitely posed a threat to Linamar’s reputation. This was the most significant factor in this case.

Whether the accusation involved the use of company equipment

Kelly did not use company computers to commit the alleged acts. Had he done so, this would undoubtedly be enough for termination.

This case illustrated the three key factors to be determined if employers are considering terminating an employee for being charged criminally for acts committed outside of the workplace. It is important to understand that such decisions should be made with careful consideration of all the factors. The unique facts of each case must be considered because an employee being charged with a crime that is morally reprehensible, such as the one described, does not on its own grant an employer cause to terminate an employee without compensation (notice pay).  Please seek the advice of an employment law expert if faced with a similar situation.